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“Now is not the time, nor is this the appropriate proceeding, to engage in a debate about the need for net neutrality obligations,” two TWC lawyers warned the FCC on Monday. The discussion should stay strictly focused on broadband deployment, the company insists. “Debates in this proceeding about new net neutrality regulations would only divert attention from these important goals, delaying the distribution of funds while generating considerable contention when the Commission should instead be fostering a spirit of collaboration.”

And one of them, Comcast, definitely thinks that the agency was way out of line to invoke this statement when sanctioning the company for P2P throttling last year, and has filed legal papers against the FCC in federal court.
Expect arguments that the Commission never really properly established the declaration as a set of rules when the trial starts.

Well, yeah, I’d expect to hear arguments like that, because the duopoly’s paid shills have been making them ever since
the FCC made that toothless declaration of principles.

Yet it seems the Obama administration has taken the initiative to do what the FCC never did:

But the American Recovery and Reinvestment Act of 2009 has hard-wired the FCC’s pronouncement into law, at least when it comes to stimulus grantees. The legislation requires of grant recipients “at a minimum, adherence to the principles contained in the Commission’s broadband policy statement.” Plus the government must publish, in consultation with the Commission, “the non-discrimination and network interconnection obligations that shall be contractual conditions of grants awarded.”

Still, why is Time Warner picking now to be so intransigent?
And why is NCTA claiming FCC can’t interpret those principles, because

“Imposing new and untested nondiscrimination or interconnection requirements as a condition of stimulus funding risks injecting contentiousness, uncertainty, and delay into a process that should focus on creating new jobs and new broadband connections as quickly as possible,”

While NCTA and TW are of course themselves injecting contentiousness, uncertainty, and delay into the process.

Hm, so if the current duopoly won’t accept these principles, the stimulus money may have to go to other companies.
Which could mean the end of the duopoly.

(((Well, no — the “worst” would be that the publishers keep grinding out
product, only it’s evil propaganda entirely subsidized by ultrawealthy
moguls who have made themselves the only public source of news and
culture. In other words, the commercial press collapses and it’s replaced
by a classically fascist press. (Likely run on bailout money.) THAT’s the
worst — with the possible exception of a furious proletarian upheaval
that forces everyone to read grimy, poorly-printed copies of PRAVDA.)))

It would be easy to see a path from where we are now (half of U.S.
media is owned by only five companies that actively suppress stories
they don’t want to hear and promote stupid ones they do want) to Bruce’s
scenario.

Here’s a good test for the new U.S. Executive: to recognize that
steady pragmatism means radical change, starting with the FCC:

The solution here is not tinkering. You can’t fix DNA. You have to
bury it. President Obama should get Congress to shut down the FCC and
similar vestigial regulators, which put stability and special interests
above the public good. In their place, Congress should create something
we could call the Innovation Environment Protection Agency (iEPA),
charged with a simple founding mission: “minimal intervention to maximize
innovation.” The iEPA’s core purpose would be to protect innovation from
its two historical enemies—excessive government favors, and excessive
private monopoly power.

—Reboot the FCC,
We’ll stifle the Skypes and YouTubes of the future if we don’t demolish
the regulators that oversee our digital pipelines.
By Lawrence Lessig,
Newsweek Web Exclusive,
23 Dec 2008

Lessig gets the connection with his old topic of intellectual property
and copyright. Those are monopolies granted by the federal government,
and they have been abused by the monopoly holders just like the holders
of communication monopolies:
Continue reading →

Greenwald notes that AT&T spends more in three months for
lobbying than EFF’s entire budget for a year.
Then he spells out how the lobbying revolving door works, and concludes:

The “two sides” referenced there means the House Democratic leadership
and the telecoms. Congressional leaders are “negotiating” with the
telecoms — the defendants in pending lawsuits — regarding the best way
for immunizing them from liability for their lawbreaking, no doubt with
the help of the former Democratic members and staffers now being paid by
the telecoms to speak to their former bosses and colleagues about what
they should do. To describe the process is to illustrate its oozing,
banana-republic-like corruption, but that’s generally how our laws
are written.

None of this is particularly new, but it’s still remarkable to be able
to document it in such grotesque detail and see how transparent it all
is. In one sense, it’s just extraordinary how seamlessly and relentlessly
the wheels of this dirty process churn. But in another sense, it’s perhaps
even more remarkable — given the forces lined up behind telecom amnesty
— that those who have been working against it, with far fewer resources
and relying largely on a series of disruptive tactics and ongoing efforts
to mobilize citizen anger, have been able to stop it so far.

Remember, AT&T and the other telcos and cablecos are the same
companies that want to nuke net neutrality in the name of competition
and progress; two other flags they behind, just like the banana republic
flag of national security.

It turns out Prof. Chris Yoo has been rebutted by legal scholars before:

Our article directly replies to a series of articles published by
Professor Christopher Yoo on this topic. Yoo’s scholarship has been
very influential in shaping one side of the debate. Yoo has mounted
a sophisticated economic attack on network neutrality, drawing from
economic theories pertaining to congestion, club goods, public goods,
vertical integration, industrial organization, and other economic
subdisciplines. Yet he draws selectively.

For example, his discussion of congestion and club goods is partial in
that he ignores the set of congestible club goods that are most comparable
to the Internet – public infrastructure. Yoo focuses on the negative
externalities generated by users (i.e., congestion) but barely considers
the positive externalities generated by users (he simply assumes that
they are best internalized by network owners). Yoo appeals to vertical
integration theory to support his trumpeting of ‘network diversity’
as the clarion call for the Internet, but he myopically focuses on
the teaching of the Chicago School of economics and fails to consider
adequately the extensive post-Chicago School literature. And so on.

In our article, we explain the critical flaws in Yoo’s arguments and
present a series of important arguments that he and most other opponents
of network neutrality regulation ignore.

The authors also address David P. Reed’s point that competition is
not the holy grail of networking:

By focusing only on the market for last-mile broadband networks, Yoo not
only neglects the importance of unfettered application-level innovation
for realizing economic growth and the role of a nondiscriminatory access
regime in fostering the production of a wide range of public and nonmarket
goods. His argument also neglects other ways to solve the problem of
broadband deployment that would not impede competition and innovation
in complementary markets.

So suppose for the moment that net neutrality is an antitrust issue.
Does this bill fix antitrust law enough to deal with it?

Federal lawmakers have introduced yet another network neutrality bill,
but this time with a focus on fair trade issues.

This week, U.S. Rep. John Conyers, who chairs the House Judiciary
Committee, has introduced legislation that addresses the issue by labeling
it an antitrust matter. Conyers’ H.R. 5994 would ban discriminatory
network management practices by amending the Clayton Act.

The bill, labeled the Internet Freedom and Nondiscrimination Act, would
require carriers to promote competition and allow people to use any
device they want to on the carriers’ networks. The bill makes exceptions
for emergencies, criminal investigations, parental controls, marketing,
and improvements to quality of service.

Under the Detroit Democrat’s proposed legislation, ISPs could give
preference to certain types of data, but they must give the preference
regardless of the data source. It would ban ISPs from discriminating
based on content, applications, or services.

—
Lawmakers Eye Net Neutrality As Anti-Trust Issue,
The Internet Freedom and Nondiscrimination Act would require carriers to promot
e competition and allow people to use any device they want to on the carriers’
networks.
By K.C. Jones,
InformationWeek,
May 9, 2008 05:42 PM

And does this fix the problems Google and Ebay complain about?

Meanwhile, a cosponsor sums it up:

U.S. Rep. Zoe Lofgren, D-Calif., has co-sponsored the legislation.

“Recent events have shown that net neutrality is more than a hypothetical
concern. We need a meaningful remedy to prevent those who control the
infrastructure of the Internet from controlling the content on the
Internet,” Lofgren said. “This legislation will help guarantee that the
innovative spirit of the Internet is not trampled.”